{"id":186065,"date":"2008-12-09T00:00:00","date_gmt":"2008-12-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nand-lal-vs-i-have-heard-mr-sumeet-mahajan-on-9-december-2008"},"modified":"2019-02-01T10:43:13","modified_gmt":"2019-02-01T05:13:13","slug":"nand-lal-vs-i-have-heard-mr-sumeet-mahajan-on-9-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nand-lal-vs-i-have-heard-mr-sumeet-mahajan-on-9-december-2008","title":{"rendered":"Nand Lal vs I Have Heard Mr.Sumeet Mahajan on 9 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Nand Lal vs I Have Heard Mr.Sumeet Mahajan on 9 December, 2008<\/div>\n
CR No.5745 of 2003                                             [1]\n\nIN   THE    HIGH COURT OF PUNJAB                 AND HARYANA AT\n                     CHANDIGARH\n\n\n\n                                     Civil Revision No.5745 of 2003\n\n                                     Date of Decision: 9 - 12 - 2008\n\n\n\nNand Lal                                                ....Petitioner\n\n                              v.\n\nGurdev Kaur                                            ....Respondent\n\n\n\nCORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA\n\n                              ***\n\nPresent:    Mr.Sumeet Mahajan, Sr.Advocate with\n            Mr.Amandeep Singh, Advocate\n            for the petitioner.\n\n            Mr.S.S.Rangi, Advocate\n            for the respondent.\n\n                              ***\n\nKANWALJIT SINGH AHLUWALIA, J.\n<\/pre>\n
            Present revision petition has been filed by Nand Lal son of<\/p>\n
Goverdhan Dass resident of Bassi Pathana. He is aggrieved against order<\/p>\n
dated 13.10.2003 passed by the Appellate Authority, Fatehgarh Sahib by<\/p>\n
which appeal filed by the respondent-landlady was accepted and judgment<\/p>\n
dated 28.1.2002 delivered by Rent Controller, Fatehgarh Sahib was set<\/p>\n
aside.\n<\/p>\n
            Gurdev Kaur landlady had instituted an eviction petition on<\/p>\n
29.10.1996. She has stated in the eviction petition that she is owner and<\/p>\n
landlady of the shop shown in red colour in the site plan situated in Grain
\n CR No.5745 of 2003                                               [2]<\/p>\n
Market, Khamanon, District Fatehgarh Sahib. The said shop was on lease<\/p>\n
with the tenant at the rate of Rs.600\/- p.m.. It was further pleaded that<\/p>\n
relationship of landlord and tenant has been admitted by the tenant in Suit<\/p>\n
No.422 of 1994 titled as `Nand Lal v. Gurdev Kaur’, decided on 4.1.1995 by<\/p>\n
the Court of Sh.D.K.Sarpal, Sub Judge Ist Class, Fatehgarh Sahib. It was<\/p>\n
further stated that tenancy was on month to month basis. For seeking<\/p>\n
eviction of the tenant, three grounds were pleaded which can be reproduced<\/p>\n
as under:-\n<\/p>\n
             a)      That the respondent has not paid the rent at the rate of<\/p>\n
             Rs.600\/- per month since August, 1995.\n<\/p><\/blockquote>\n
             b)      That the shop in question was earmarked as grain shop<\/p>\n
             and the same had been leased to the respondent by the<\/p>\n
             petitioner for specific purpose of carrying on the business of<\/p>\n
             commission agent of agriculture produce\/grains but the<\/p>\n
             respondent has started using the demised shop for the purpose<\/p>\n
             of selling corrosive fertilizer & dangerous insecticides without<\/p>\n
             the permission of the petitioner and as such is guilty of change<\/p>\n
             of user of the demised shop.\n<\/p><\/blockquote>\n
             c)      That on account of storage of fertilizer in the shop in<\/p>\n
             dispute, the walls and the floor of the shop have been badly<\/p>\n
             damaged which have impaired the value and utility of the<\/p>\n
             demised shop.<\/p><\/blockquote>\n
             Notice of the eviction petition was issued. Written statement<\/p>\n
was filed. Relationship of landlord and tenant was admitted. It was stated<\/p>\n
that shop was taken on rent in the month of January, 1990. It was further<\/p>\n
stated that entire rent has been paid. Regarding change of user, it was stated
\n CR No.5745 of 2003                                               [3]<\/p>\n
that from the very inception of tenancy, tenant has been carrying on the<\/p>\n
business of selling fertilizer. It was stated that shop was taken on rent in<\/p>\n
January, 1990 and in February, 1990 license was obtained for selling<\/p>\n
fertilizer. It was denied that storage of fertilizer has damaged the shop and<\/p>\n
impaired the value and utility of the demised premises. Replication was<\/p>\n
filed in which averments made in the eviction petition were reiterated and<\/p>\n
that of the written statement were denied. The Court of Rent Controller had<\/p>\n
drawn the following issues:-\n<\/p>\n
            1. Whether the respondent is in arrears of rent and if so to<\/p>\n
                what amount? OPA<\/p>\n<\/blockquote>\n
            2. Whether the respondent has changed the user of the<\/p>\n
                demised premises\/shop without the consent of applicant?<\/p>\n
                OPA<\/p>\n<\/blockquote>\n
            3. Whether the respondent has impaired the value and utility<\/p>\n
                of the demised shop? OPA<\/p>\n<\/blockquote>\n
            4. Relief.<\/p><\/blockquote>\n
            Gurdev Kaur landlady has herself appeared as AW-1.            She<\/p>\n
proved site plan of the shop Ex.P1. It was stated that shop was allotted for<\/p>\n
Commission Agent of food grains. The tenant for 3 to 4 months did the<\/p>\n
work of food grains and thereafter he started selling fertilizer, insecticides<\/p>\n
and pesticides and the tenant had taken no oral or written consent for<\/p>\n
change of user and storage of insecticides and pesticides has diminished the<\/p>\n
value and utility of the shop. She admitted that no rent note was executed.<\/p>\n
Balbir Singh was examined as AW-2. He stated that in the last week of<\/p>\n
October, 1989, he along with his father had taken the trolley of paddy for<\/p>\n
sale on the commission agent shop and again in January, 1990, he along
\n CR No.5745 of 2003                                              [4]<\/p>\n
with his father had taken the trolley of wheat on the shop of tenant Nand Lal<\/p>\n
son of Goverdhan Dass. He further stated that thereafter Nand Lal stopped<\/p>\n
the business of sale purchase of food grains and commenced the business of<\/p>\n
sale of fertilizer, insecticides and pesticides.   In cross-examination he<\/p>\n
admitted that he was not having any slip for the sale of paddy and wheat.<\/p>\n
Chaman Lal, Junior Assistant from the office of Administrator, New Mandi<\/p>\n
Township, Punjab government was examined as AW-3. He brought the<\/p>\n
summoned record of shop No.77 situated at Khamanon Mandi which was<\/p>\n
allotted to Gurdev Kaur landlady. He proved allotment letter issued in the<\/p>\n
year 1972. He further stated that shop No.76 at Khamanon Mandi was<\/p>\n
allotted to Sham Singh Sekhon husband of Gurdev Kaur landlady. He also<\/p>\n
proved allotment letter of that shop. He stated that terms and conditions of<\/p>\n
allotment are mentioned in the allotment letter. Allotment letter of the<\/p>\n
landlady-respondent is Ex.P2. He also stated that on 19.1.2.2000 letters<\/p>\n
were issued to Sham Singh Sekhon and Gurdev Kaur landlady. Letters have<\/p>\n
been proved as Exs.P4 and P5. During cross-examination, he admitted that<\/p>\n
notices were issued to Gurdev Kaur in the year 1984, 1987 and 1988 but no<\/p>\n
proceedings were initiated for cancellation of allotment. He stated that<\/p>\n
notice Ex.P5 was received personally by Gurdev Kaur in the office.<\/p>\n
Jagjiwan Kumar Gupta AW-4 a Chartered Engineer who retired as Head of<\/p>\n
Civil Engineering Department, Department of Technical Education Punjab ,<\/p>\n
Chandigarh was examined to prove technical report Ex.A6 which according<\/p>\n
to him was prepared after he carried inspection of disputed building on<\/p>\n
3.3.2001. He stated that due to storage of urea and pesticides in different<\/p>\n
rooms of the property, the floor walls and the roof have been damaged due<\/p>\n
to presence of Nitrogen and other harmful chemicals.\n<\/p>\n
 CR No.5745 of 2003                                             [5]<\/p>\n
              Thereafter tenant led his evidence, examined Narinder Kumar,<\/p>\n
Clerk as RW-1 from the office of Chief Agriculture Officer, Fatehgarh<\/p>\n
sahib. He proved license issued in favour of Indian Khad Depot, Khamanon<\/p>\n
Mandi on 5.2.1990. He stated that license was for sale of Urea, DAP<\/p>\n
fertilizer.   In cross-examination, he stated that he has no personal<\/p>\n
knowledge that tenant has started the business of fertilizer, pesticides and<\/p>\n
insecticides in April, 1990. RW-2 Swaran Singh, Clerk, State Bank of<\/p>\n
Patiala, Khamanon Mandi was examined regarding deposit of rent. Amrit<\/p>\n
Lal Verma, Draftsman RW-3 proved site plan Ex.R8 and his report Ex.R7<\/p>\n
along with photographs. Tenant Nand Lal appeared as RW4.<\/p>\n
              As stated, eviction petition was filed on 29.10.1996.    Rent<\/p>\n
Controller decided the case on 28.1.2002. Rent Controller held that ground<\/p>\n
of non payment of rent is not made out as the rent had been regularly<\/p>\n
deposited in the account of the landlady. Rent Controller further held that<\/p>\n
no reliance can be placed upon the testimony of Balbir Singh AW-2. It was<\/p>\n
further held that the tenant has been doing the same business of sale of<\/p>\n
fertilizer as he had obtained the license in February, 1990 and no license<\/p>\n
had been obtained by him for sale of grains as Commission Agent.<\/p>\n
Therefore, the landlady had failed to prove the ground of change of user.<\/p>\n
Rent Controller noticed the testimony of Jagjiwan Kumar Gupta, Expert as<\/p>\n
he had opined that due to storage of urea, the demised premises had been<\/p>\n
damaged and the same has reduced the life and value of the property. There<\/p>\n
are pits in the floor, the cement plaster on the walls has been blistered at<\/p>\n
many places and there are patches of dampness in the walls and roof. But at<\/p>\n
the same time, Rent Controller also noticed the testimony of Amrit Lal<\/p>\n
Verma, Draftsman examined by the tenant and held that since the shop has
\n CR No.5745 of 2003                                                 [6]<\/p>\n
been let out for sale of fertilizer, therefore, it cannot be said that value and<\/p>\n
utility of the shop has been impaired. Therefore, the eviction petition was<\/p>\n
dismissed.\n<\/p>\n
             Aggrieved against the same, the landlady had filed an appeal.<\/p>\n
Appellate Authority held that landlady had failed to prove that there were<\/p>\n
arrears of rent. Therefore, he found no infirmity in the findings of the<\/p>\n
learned Rent Controller qua non payment of rent.\n<\/p>\n
             Appellate Authority examined the allotment letters Exs.P2 and<\/p>\n
P3 issued in favour of the landlady and her husband Sham Singh Sekhon.<\/p>\n
It noticed condition Nos.18 and 20 of the allotment letter.              Same are<\/p>\n
reproduced below:-\n<\/p>\n
             “18. The site and the building constructed thereon shall be<\/p>\n
                     used as “Grain Shop” and for no other purpose.\n<\/p><\/blockquote>\n
             20.     Should any transferee fail to observe or comply with any<\/p>\n
                     of the foregoing conditions or fail to construct the plot<\/p>\n
                     within time specified, the plot will be resumed and his<\/p>\n
                     deposit shall be forfeited to the State Government which<\/p>\n
                     may have the property resold by public auction. Any<\/p>\n
                     deficiency of price which may result on such resale shall<\/p>\n
                     be made good and paid by the defaulters purchaser.”<\/p><\/blockquote>\n
             Appellate Authority further noticed that notices dated<\/p>\n
19.12.2000 Exs.P4 and P5 for violation of conditions of allotment have<\/p>\n
been issued.    Therefore, landlady faced peril of resumption and drew<\/p>\n
support from the observations of Hon’ble Supreme Court in Surge Seed<\/p>\n
Farm v. Raj Kumar Chadha, 1995(2) PLR 643 wherein due to un-authorised<\/p>\n
construction, landlord was facing a threat of resumption and was ordered
\n CR No.5745 of 2003                                                  [7]<\/p>\n
the ejectment. After analysing and meticulously adjudging the evidence, the<\/p>\n
Appellate Authority held as under:-\n<\/p>\n
            “…….Thus from the above referred evidence, it is established<\/p>\n
            that not only the respondent has changed the user of the shop in<\/p>\n
            question but his act of running fertilizer business from the shop<\/p>\n
            in question in contravention of the conditions of allotment has<\/p>\n
            rendered the shop liable for resumption. The case of appellant<\/p>\n
            is fully supported by 1995(2) PLR 643 (Supreme Court) Durga<\/p>\n
            Seed Farm Versus Raj Kumari Chadha, wherein in somewhat<\/p>\n
            identical circumstances where tenant has rendered the property<\/p>\n
            in question liable for resumption on account of un-authorised<\/p>\n
            construction, the Hon’ble apex Court upheld the judgment of<\/p>\n
            the Hon’ble High Court, vide which the tenant had been ordered<\/p>\n
            to be ejected from the demised premises.”<\/p><\/blockquote>\n
            Regarding impairment of value and utility of the shop, the<\/p>\n
Appellate Authority has held that landlady has failed to prove this ground<\/p>\n
and upheld the findings of the Rent Controller. Therefore, the Appellate<\/p>\n
Authority taking contravention of allotment letter and threat of resumption<\/p>\n
held that change of user has made the tenant liable for eviction.<\/p>\n
            Revision petition of the tenant was admitted. Records were<\/p>\n
requisitioned and same has been listed for regular hearing before this Court.<\/p>\n
            I have heard Mr.Sumeet Mahajan, counsel for the petitioner-<\/p>\n
tenant and Mr.S.S.Rangi, counsel for the respondent-landlady.<\/p>\n
            Mr.Sumeet Mahajan, learned counsel for the petitioner has<\/p>\n
contended that the respondent-landlady is not entitled to seek eviction of the<\/p>\n
premises on the ground of change of user. He has stated that in the present
\n CR No.5745 of 2003                                                 [8]<\/p>\n
case neither the change of user is established on the facts nor on law. It has<\/p>\n
been stated that the tenancy was created in January, 1990. In February,<\/p>\n
1990, license was obtained by the tenant-petitioner from the Department of<\/p>\n
Chief Agriculture Officer, Fatehgarh Sahib. Therefore, from the very<\/p>\n
inception of tenancy, petitioner is engaged in sale of fertilizer, insecticides<\/p>\n
and pesticides. It has been further contended that even if it is assumed that<\/p>\n
from sale of grains, petitioner has started selling fertilizer, insecticides and<\/p>\n
pesticides, same would not amount to such a change of user which will<\/p>\n
necessitate eviction of the tenant. In support of his contention, learned<\/p>\n
counsel for the petitioner has relied upon Pitamber Lal v. Ram Lal and<\/p>\n
ors., 1984(2) R.C.R.(Rent) 504 to canvas that where the tenant was using<\/p>\n
the shop for sale of Paan and Birri and subsequently started Karyana trade,<\/p>\n
it does not amount to change of user. It has been held in Pitamber Lal’s<\/p>\n
case (supra) that change of user could only be held if it is proved that<\/p>\n
premises were let out for specific purpose and subsequently tenant has put<\/p>\n
the same to different purpose. Counsel State that no rent note has been<\/p>\n
proved. Further reliance has been placed on Parkash Chander v. Bhim<\/p>\n
Sain through Legal Heirs, 1986(2) R.C.R. (Rent) 631 in support of above<\/p>\n
contention. Counsel has further relied upon Hari Rao v. N. Govindachari<\/p>\n
and others<\/a>, AIR 2005 SC 3389 to state that use of premises for specific<\/p>\n
purpose other than it is leased, can only be taken into consideration if<\/p>\n
residential property is converted into non-residential property or vice versa.<\/p>\n
It has been submitted that the purport of the judgment relied upon is that<\/p>\n
change of user should be liberally construed and as in present case, in law<\/p>\n
no change of user can be attributed to petitioner-tenant. Counsel for the<\/p>\n
petitioner has relied upon Mohan Lal v. Jai Bhagwan, AIR<\/a> 1988 SC 1934
\n CR No.5745 of 2003                                               [9]<\/p>\n
(1) to urge that the alleged change of user from sale of grain as Commission<\/p>\n
Agent, to sale of fertilizer, insecticides and pesticides has caused no<\/p>\n
impairment or mischief or detrimental to the demised premises, therefore,<\/p>\n
Appellate Authority was wrong in holding that petitioner was liable for<\/p>\n
eviction due to change of user. Para 9 of judgment in Mohan Lal’s case<\/p>\n
(supra) read as under:-\n<\/p>\n
            “9.      While respectfully agreeing with the said observations of<\/p>\n
            Lord Diplock, that the Parliament legislates to remedy land the<\/p>\n
            judiciary interpret them, it has to be borne in mind that the<\/p>\n
            meaning of the expression must be found in the felt necessities<\/p>\n
            of time. In the background of the purpose of rent legislation and<\/p>\n
            inasmuch as in the instant case the change of the user would not<\/p>\n
            cause any mischief or detriment or impairment of the shop in<\/p>\n
            question and in one sense could be called an allied business in<\/p>\n
            the expanding concept of departmental stores, in our opinion, in<\/p>\n
            this case there was no change of user which attracts the<\/p>\n
            mischief of S. 13(2)(ii)(b) of the Act.        The High Court,<\/p>\n
            therefore, was in error.”                  (emphasis supplied)<\/p>\n
            I am of the view that the judgment relied upon by the counsel<\/p>\n
has demolished the case of the petitioner-tenant.        In the present case,<\/p>\n
apparently as per terms and conditions of letter of allotment Exs.P2 and P3,<\/p>\n
change of user has fastened the respondent-landlady with a notice of<\/p>\n
resumption, therefore, it is not only detrimental to the respondent-landlady<\/p>\n
but such a notice due to which shop could be resumed was sufficient to<\/p>\n
order eviction of the tenant. Therefore, judgment and order passed by the<\/p>\n
Appellate Authority holding the petitioner-tenant liable for eviction is
\n CR No.5745 of 2003                                               [10]<\/p>\n
affirmed.<\/p><\/blockquote>\n
            Counsel for the petitioner has also advanced certain ancillary<\/p>\n
arguments. It was stated that it was no where pleaded that due to issuance<\/p>\n
of notice, shop is going to be resumed. Therefore, because of lack of<\/p>\n
pleadings, Appellate Authority could not take this fact into consideration.<\/p>\n
To support this contention, reliance has been placed on Union of India and<\/p>\n
others v. Jai Prakash Singh and<\/a> another, (2007) 10 SCC 712. In the<\/p>\n
present case, eviction petition was instituted on 29.10.1996. Notice Ex.P5<\/p>\n
regarding resumption was received on 19.12.2000.         Therefore, this fact<\/p>\n
could not be pleaded in the eviction petition. Matter of fact is that due to<\/p>\n
sale of fertilizer, respondent-landlady faces a threat of resumption of the<\/p>\n
shop for violation of conditions of allotment letter. Therefore, the Appellate<\/p>\n
Authority has ordered eviction of the petitioner-tenant. This finding cannot<\/p>\n
be said to be perverse.\n<\/p>\n
            For the reasons stated above, no interference is warranted and<\/p>\n
the present petition is dismissed.    The petitioner-tenant is granted two<\/p>\n
months time to vacate and hand over vacant possession of the demised<\/p>\n
premises.<\/p>\n
\n\n                               ( KANWALJIT SINGH AHLUWALIA )\nDecember 9, 2008                          JUDGE\nRC\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Nand Lal vs I Have Heard Mr.Sumeet Mahajan on 9 December, 2008 CR No.5745 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5745 of 2003 Date of Decision: 9 – 12 – 2008 Nand Lal ….Petitioner v. Gurdev Kaur ….Respondent CORAM: HON’BLE MR.JUSTICE KANWALJIT SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-186065","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nNand Lal vs I Have Heard Mr.Sumeet Mahajan on 9 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nand-lal-vs-i-have-heard-mr-sumeet-mahajan-on-9-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nand Lal vs I Have Heard Mr.Sumeet Mahajan on 9 December, 2008 - 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